Two cases out within the last two weeks illustrate the importance of the race for the Wisconsin Supreme Court that voters will decide tomorrow. The Court also accepted new cases today, which again show the importance of tomorrow’s election.
STUART V. WEISFLOG
Earlier this week, the Court decided Stuart v. Weisflog’s Showroom Gallery, Inc. by a 4-3 vote, with Abrahamson, Bradley, Crooks, and Butler aligned on one side, and Prosser, Roggensack, and Ziegler dissenting (decision). The MJS summarizes the case: “A Brookfield couple who sued a contractor over shoddy construction of an addition to their home will be able to collect double the $95,000 in damages awarded by a jury plus attorney fees, according to a decision issued Friday by the state Supreme Court.” How’s this for judicial activism, MJS again: “Allowing double damages encourages reluctant consumers to become private attorneys general and fight unfair trade practices, the court found. That will deter future contractor malfeasance and promote the public good.”
From the Roggensack dissent, as summarized in the MJS:
“I would reverse the decision of the court of appeals and remand the case to the circuit court to vacate the award of damages and attorney fees and dismiss the lawsuit,” Roggensack wrote. She went on to say homeowners have been able to sue and collect for breach of contract and that has been “a sufficient remedy in the past.” Roggensack said allowing consumers to sue for unfulfilled contractor promises “will place an unwarranted burden of possible criminal prosecution on the building trades. It will have far-reaching impacts throughout Wisconsin, which the majority opinion appears not fully to appreciate.”
Deb Jordahl, writing for the Wisconsin Policy Research Institute, describes the decision as “another Sloppy Wet Kiss on State Trial Bar.” She closes her op-ed by asking “whether the lofty goal of turning reluctant consumers into attorneys general is an appropriate role for our state Supreme Court, because it sounds a bit like legislating from the bench to me.”
STATE V. HARENDA ENTERPRISES
Out two weeks ago, this case is again decided by a 4 to 3 vote breaking along the lines delineated above (decision). The AP story on the case: “The Wisconsin Supreme Court has reinstated penalties against a firm accused of violating asbestos management rules in the renovation of the Milwaukee Theatre. The court ruled 4-3 that Harenda Enterprises Incorporated is liable for violating the state administrative code. It reinstated an order that the company pay penalties and surcharges for failing to remove asbestos during the renovations.” The Court overturned the ruling of the WI Court of Appeals (decision) and gave effect to two “clarifications” from the U.S. EPA issued after the DNR adopted the absestos rule.
Justice Ziegler dissents for herself, Justice Prosser, and Justice Roggensack, basically engaging in a textualist interpretation of the 1990 DNR rule at issue.
In an area as crucial as asbestos removal, it is important to have clear, understandable, enforceable testing methods. In general, clarifications may be a useful guide, but the “clarifications” in this case are inconsistent with the plain language of the rule and more than interpretive guidelines. In fact, the “clarifications” effect a substantive change rather than clarify the alleged ambiguity in the 1990 rule. Despite the fact that the “clarifications” do not clarify the alleged ambiguity, are contrary to the promulgated rule, and were not adopted in this state, the majority still gives them the force of law. As a result, I must respectfully dissent.
She also makes a separation of powers and fairness/notice argument: “In effect, new rules governing asbestos testing, which could result in civil or criminal penalties, have been imposed without following proper rule-making procedures.”
This is why the election tomorrow matters, folks. The Court is split 4-3, with two very different judicial philosophies held by each wing. One set of justices, including Justice Butler, believes in the Court empowering consumers, updating rules, and acting like a legislature. The other set of justices believes in giving effect to the plain language of the law at issue. Which do you think judges ought to be doing?
NEW CASES
Here is how the Supreme Court’s information release describes three of the five cases on which it granted the petition for review today:
Godoy v. E.I. du Pont
This is a product liability case involving lead paint and pigment manufacturers. A decision by the Supreme Court could affect more than 30 similar cases pending in Milwaukee County Circuit Court and how the Supreme Court’s 2005 decision in Thomas ex rel. Gramling v. Mallett may be applied in other cases.
Plastics Engineering Co. (Plenco) v. Liberty Mutual
The U.S. Court of Appeals for the 7th Circuit has asked the Wisconsin Supreme Court to certify three questions related to this case, which involves insurance coverage for asbestos-related lawsuits. … A decision by the Supreme Court could clarify the definition of “occurrence” under Wisconsin law and control the outcome of the appeal in the 7th Circuit. A decision also could have public policy implications and resolve questions likely to recur in the state.
State v. Denk
[W]hether the police may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning of a previous case, State v. Pallone, 2000 WI 77…
Upon running a license plate check, the officer discovered the license plates on the vehicle did not belong to Pickering’s car. When the officer returned to the car, he smelled marijuana and eventually found drug paraphernalia and marijuana.
After formally arresting Pickering, the officer walked around to the passenger side of the car, where he saw a small eyeglass case on the ground in the vicinity where the passenger, Jordan A. Denk, was standing. Denk conceded the eyeglass case belonged to him and placed the case on the hood of the car at the officer’s request. Denk denied owning the contents, which turned out to be a glass “methamphetamine pipe” and “some cleaning tools.” The officer arrested Denk and searched him, finding a baggie of marijuana, two marijuana pipes and a baggie containing methamphetamine.
… The Court of Appeals certification memorandum focuses on the search of the eyeglass case and whether its search could be justified as incident to the arrest of the driver, Pickering.
The state argues the search incident to the arrest of a driver of a vehicle should extend beyond a vehicle’s interior to an immediate area surrounding the vehicle from which the driver could retrieve a weapon or evidence. To rule otherwise would allow criminals to get rid of evidence or contraband simply by throwing it out of the vehicle, the state contends.
Denk asserts the search-incident-to-arrest exception authorizes police to search only the interior compartment of an automobile in which the individual was a recent occupant.
These could each be very important decisions – how is Thomas applied, what are its limits? Will the Court issue a sweeping decision on liability for asbestos suits? What can a police officer search in the course of a traffic stop after an arrest is made?
Who do you want deciding those questions – Justice Gableman or Justice Butler?
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Dan, I have to question you on some of this. For Stuart, I notice that you didn’t mention that the double damages is statutory. I admit that private attorneys general (the original opinion got it wrong- they said “attorney generals”) is disturbing, but I think the other grounds for making the double damages apply to the entire claim were sufficient.
Dan, your claim that Stuart is the product of a judicially active court is simply untrue. If there is any attempt of judicial activism or legislating of the bench, it appears in the dissent. Let me explain:
Stuart invovled the application of the legislatively created home improvement practice act (“HIPA”). The legislature also created a remedy of double damages for violations HIPA as well as attorneys fees.
The specicic quote you thatprovide as an example of judicial activism, states:
“Allowing double damages encourages reluctant consumers to become private attorneys general and fight unfair trade practices, the court found. That will deter future contractor malfeasance and promote the public good.”
However, this language is not the judiciary legislating. Rather, it is the expression of the legislatures intent for the HIPA statute. Anytime there is a statutory attorney fee provision, the legislature has enacted a policy decision for individuals to act as “private attorney generals.” It is the role of the courts to enforce that policy.
The majority did so in Stuart. To this end, The majority noted “We must give effect to statutory enactments by determining the statute’s meaning, especially through its language, which we presume expresses the intent of the legislature.” Does that sound of judicial activism?
The majority upheld the jury’s decision that a HIPA violation had occurred and awareded what was required of it by the application of state law. That is not judicial activism.
The dissent, however, was engaging in judicial activsim. In pars. 99-112, Justice Roggensack argued for the application of the economic loss doctrine. The ELD is a judicially created doctrine, meaning that it was created in the courts not the legislature. In short, the ELD prohibits tort claims arising out of contracts for products where there are only monetary damages.
Despite the fact that the contractor lied about his knowledge of building codes and his ability to build a safe structure, the dissent would have dismissed the home owners claim because of the ELD. My problem with this logic is that there is an express statute providing a cause of action, the dissent is not following the law is is overturning the law with a judicially created doctrine. THAT IS THE DEFINITION OF JUDICIAL ACTIVISM!
Deb Jordahl’s piece is equally troubling. She spins this as a trial lawyer victory. She does not mention the fact that the Home Owner’s attorney is from Von Briesen & Roper, which is the 5th biggest law firm in the state and hardly associated with the PI bar.
So shame on you all for believing the hype without reading the case.